COMPULSORY DISPUTE SETTLEMENT AND THE PROBLEMS OF MULTIPLE

FORA UNDER INTERNATIONAL ENVIRONMENTAL LAW

Teshager Worku Dagne

AbstractWith the increase in the common concerns and interests among states, the number oftreaties regulating their relations is also in the rise. This has been compounded with therapid proliferation of international courts and tribunals, posing the danger of a potentialconflict among these numerous fora. The problem becomes much more imminent whenthe confrontation is between forums of mandatory jurisdiction, to which, the disputantparties have conceded.

This article examines the situation as envisioned in the international environmental fieldand suggests the possible remedy to resolve the problems raised. Accordingly, it isdivided in to three sections.

The first section states the backgrounds to the problem and explains the basic concepts ofcommon use through out the paper. It also provides the building blocks for theconsecutive discussions by making elaborations on the various dispute settlement systemsthat may have impacts on the environmental field and hence, are subjects of discussionthrough out the paper.

The second section elucidates the dangers that the existence of multiple fora in thecompulsory paradigm poses, by referring to actual cases that have figured in theinternational courts and tribunals recently. In the last section, an attempt is made toforward possible suggestions by drawing inferences from the approaches adopted by theinternational courts and tribunals that have disposed claims reminiscent of the problemsaddressed by the paper. The article ends up making conclusions and summarizing thepossible solutions. 1

1 Compulsory Settlement of Environmental Disputes

1.1 Introductory background

involving sovereign states is that “…no state can, without its consent, be compelled to

submit its disputes …to arbitration, or any other kind of pacific settlement”1. This is the

so-called “principle of consent”, a rule so “…well established in international law...” that

the Court felt no need to provide evidence of its existence, nor to elaborate on its precise

content2.

Yet, over the past two decades, theory and practice in relation to the compulsory exercise

of international jurisdiction, where, consent is largely form because it is either implicit in

the ratification of treaties creating certain international organizations endowed with

adjudicative bodies, or is jurisprudentially bypassed and litigation is often undertaken

unilaterally, have increasingly grown up. This shift is visible, not only in the international

judicial fora, but even amongst the quasi-judicial and implementation control procedures,

as well in political processes, such as determination of legality by the UN Security

Council3.

1 Status of Eastern Carelia, (1923),Advisory Opinion, PCIJ ( Ser. B) No.5,272 Cesare P.R. Romano, From the consensual to the Compulsory Paradigm in the InternationalAdjudication: Elements for a Theory of Consent, (New York: New York University Public Law and LegalTheory Working Papers, 2006), Online: Center on International Cooperation, <http://1sr.nellco. org/nyu/plltwp/papers/20 >, 43 Ibid.5

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Mean while, since the founding of the United Nations, the number of treaties and the

matters they address have expanded vastly. It is increasingly common to find the same

subjects addressed in complementary global, regional and bilateral treaties. Many of

these treaties contain provisions on the settlement of disputes regarding the interpretation

or application of that treaty itself. Some of these establish compulsory jurisdiction. These

circumstances suggest an increasing probability that a dispute will arise between states

under the substantive provisions of two complementary treaties with dispute settlement

clauses, both of which provide for compulsory system either in general or with respect to

that dispute. One area of international law where this trend is evolving is the

Environmental law regime.

This article tries to explore the relationship between the compulsory dispute settlement

procedures contained in MEAs vis-à-vis the compulsory jurisdiction of other

international fora as incorporated in complimentary and related treaties and agreements.

In particular, it will try to examine the situation in which an environmental dispute

involving a country conceding to multiples of compulsory dispute settlement fora

touching up on the various aspects of a single dispute is dealt with.

Before hastening to analyzing the issue, however, it is necessary to define concepts of

significant usage in the paper, for; the exact contour of their notion can not be taken for

granted.

1.2 International Environmental Disputes

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In a discussion of issues in this paper, what constitutes an environmental dispute is the

key question that should be addressed first. There are varieties of disputes that are

regarded as “international environmental dispute”,4 which by far, are too broad for the

purpose of this paper. Two endeavors, however, deserve an attention for the proper

understanding of the concept as employed in here.

The first attempt is by Richard Bilder in 1975 which defined an international

environmental dispute as:

“Any disagreement or conflict of views or interests between states relating

to the alteration, through human intervention, of natural environmental

systems.”5

This definition, however, is too generic as it does not distinguish between degradation

and improvement of the “natural environmental systems”, nor does it refer to the notion

of ecosystem which, nowadays, has become central to international discourse.

An other definition given in 1986 provides that:

“ An international environmental dispute exists whenever there is a conflict of

interest between two or more states (or persons within those states) concerning the

4 In 1986, Arthur Westing, an eminent American social scientist, compiled a list of the twentieth century’smajor international conflicts which, in his opinion, involved environmental factors. Among the lists were“the two world wars, some decolonization conflicts (e. g. Algerian War of Independence) and some civiland succession wars (e.g. Nigerian civil war) or the Western Sahara Revolt. According to him , thecommon denominator of all these conflicts is that natural resources ( e.g. minerals, fuels, fish stocks,agricultural crops and, ultimately , the land itself ) were, if not the objective of the contending parties, atleast at stake in the conflict.” A.H. Westing, Environmental Factors in Strategic Policy and Action : AnOverview, (1986),cited in Cesare P.R. Romano, “The Peaceful Settlement of International EnvironmentalDisputes : A Pragmatic Approach”, (2000) 56 International Environmental Law & Policy Series, 3-205 R.B. Bilder, “The Settlement of Disputes in the Field of International law of the Environment”, (1975)144 Hague Academy of International Law, 141

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alteration and condition ( either qualitatively or quantitatively) of the physical

environment”6

This definition again, doesn’t suit this paper, first because; by referring to “persons with

in those states” it enlarges the domain of international environmental disputes to the so-

called transnational disputes. Second, it speaks about alterations in general, with out

qualification. Third, it doesn’t specify the source of the alteration.

The satisfactory definition for the proper understanding of the term as employed in this

paper is the one given by P.R. Romano, which defined it as:

A conflict of views or of interest between two or more states, taking the form of

specific opposing claims and relating to an anthropogenic alteration of an

ecosystem, having detrimental effect on human society and leading to

environmental scarcity of natural resources.7

This definition is hinged up on the concept of “ecosystem” rather than “environment”, a

larger circle with in which the environment forms part,8 but through out this paper, we

will resort to the term “environment” as representing the concept in this broad context.

Therefore, we will only be dealing with disputes which meet the test of the above

definition.

1.3 Compulsory Dispute Settlement Mechanism

6 C.A Cooper, “ The Management of International Environmental Disputes in the Context of Canada-United States Relations :A survey and Evaluation of Techniques and Mechanisms”, (1986) 24 Can. Y.I.L.,2437 Supra note 2 at 298 An “ecosystem” is “an ecological community together with its environment, functioning as a unit”Wikipedia: the free encyclopedia S.V. “Environment” , Online: < http://en.wikipedia.org/wiki> see alsosupra note 4, 25

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Dispute settlement mechanisms are procedures laid down to deal with disputes between

two (or more) countries about their obligations under particular international agreements.

These procedures are listed under article 33 of the UN charter and are regarded as

peaceful means to which states have to adhere to in settling their disputes9 . In most of the

cases, some kind of tribunal or court is established to hear the case and reach conclusions,

though there is also a preliminary phase where the parties in dispute are encouraged to

reach an amicable settlement .These procedures of dispute settlement are clearly most

appropriate where the breach of the agreement causes measurable harm to a country (e.g.

loss of market access in a trade agreement ) and where the case revolves around the

interpretation or application of general rules and principles10.

The procedures could be categorized in to either consensual or compulsory. The dispute

settlement procedure is consensual if the joint agreement of the disputants is required for

it to be instigated. Under the compulsory system, however, consent to the procedure is a

requirement of a state’s membership to an international organization or legal regime and

hence, the process is typically initiated by unilateral submission11. In this sense,

compulsory dispute settlement mechanisms resemble national courts as in both cases, the

plaintiff (applicant at the international level) need not obtain the respondent’s consent to

seize the court.

9 “The parties to any dispute, the continuance of which is likely to endanger the maintenance ofinternational peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peacefulmeans of their own choice”. Charter of the United Nations, 26 June 1945, Can. T.S., 1945, No.7, art.33.110 Dunkan Brack, “International Environmental Disputes: International forums for non-compliance anddispute settlement in environment-related cases, Energy and Environmental program”, (March 2001),Online: Royal Institute of International Affairs, Department of Environment, Transport and Regions<www.riia.org/Research/eep/eep.html>11 Supra note 2, 5

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Compulsory settlement systems may be adjudicative or non- adjudicative in their nature.

The adjudicative system involves the rendering of binding decisions by an arbitral or

judicial body while in the non-adjudicative system (usually referred to as diplomatic

means of settlement), the parties to the dispute retain control over the outcome in so far

as they may accept or reject a proposed settlement.

One must distinguish dispute settlement procedures from the procedure most common in

MEAs namely, non-compliance procedures. The latter are invoked when a party’s failure

to comply with the obligations set out in the MEA damages the integrity and success of

the regime itself, rather than causing direct and measurable harm to any single party, in

which case, the party would instigate the dispute settlement procedure12.Cases of non-

compliance are usually reported by the party in respect of itself, by any other party or by

the MEA’s secretariat.

Therefore, whenever a mention is made to the compulsory system of dispute settlement in

this paper, it is inclusive of the adjudicative and non-adjudicative systems explained

circumstances, the choice of the battle ground is usually left to the tactical considerations

of the applicant.

In this section, we will look at the situation as it exists in the environmental regime. The

purpose is to examine the circumstances where disputes arising over the interpretation or

application of MEAs are dealt with in fragmented procedures of dispute resolution. This

kind of fragmented procedure may exist either with in the same legal regime (MEAs

regime), or among different regimes in different disciplines, dealing with different

aspects of the same dispute. We will be looking at these situations independently.

2.2 Fragmented Dispute Settlement procedures with in the MEA regimes

Most binding environmental treaties contain more or less detailed provisions on the

settlement of disputes. The scope of dispute settlement mechanisms is, as indicated

above, limited to disagreements arising from the interpretation or application of the

MEA. The majority of MEAs do not oblige parties to solve their disputes through binding

adjudication processes (such as that of the ICJ); although in many cases, parties can set

their preferences up on ratification of the agreement.

Given that dispute resolution procedures in MEAs tend to comprise mainly compulsory

conciliation, as indicated under Chapter one, potential linkages are feasible in respect of

common dispute resolution bodies. More specifically, state parties to a certain MEA (that

has adopted a compulsory conciliation system) might also have filed an open-ended

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optional declaration accepting the ICJ jurisdiction under Article 36(2) of the Court’s

statute27. In such instances, a dispute arising amongst these states over the interpretation

or application of such MEA may be subjected to the compulsory jurisdiction of the court.

More over, it is common to find that the same subjects of a MEA are addressed in

complementary global, regional and bilateral treaties28. Many of these treaties contain

provisions on the settlement of disputes regarding the interpretation or application of that

treaty itself. These provisions might have adopted any of the compulsory jurisdictions

discussed above. This circumstance suggests an increasing probability that a dispute will

arise between states under the substantive provisions of two complementary treaties with

dispute settlement clauses, both of which provide for compulsory settlement system

either in general or with respect to that dispute.

In all these circumstances, the choice of the battle ground is usually left to the tactical

considerations of the applicant. What would happen if such a dispute is submitted to the

compulsory conciliation of a particular MEA and an other compulsory system of dispute

settlement, or else, while initiated in one forum, the jurisdiction is objected by the other

state as being governed by an other procedure?

27 Currently, there are about fifty states accepting the ICJ jurisdiction, Supra note 10

28 Complementary treaties are agreements that are more limited in their substantive or geographic scopethan a specific MEA. For example, the Bamako Convention on the ban of the Import into Africa and theControl of Trans boundary Movement of Hazardous Wastes within Africa and Convention on theConservation and Management of Fishery Resources in the South-East Atlantic Ocean are complementarytreaties to the Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes andTheir Disposal and Convention on the Law of the Sea respectively.

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In the general international law arena, several disputes may be raised to illustrate that this

is a real problem. In the environmental field, however, the Southern Bluefin Tuna case

pitting Japan against Australia and New Zealand is one specific example. In 1993, the

three states concluded a convention over the conservation and management of southern

clause that is found in many environmental agreements in stating that in case of dispute,

“…with the consent in each of all parties to the dispute, [it will] be referred for settlement

to the International Court of Justice or to arbitration”29.

As often happens, the parties could not agree to have the dispute referred to the ICJ or

arbitration. However, all three states were also parties to the LOS convention. All of them

have also filed an optional declaration accepting the jurisdiction of the ICJ under Article

36(2) of the court’s statute. Accordingly, Australia and New Zealand could have brought

the dispute concerning Japan’s unilateral actions to at least three fora: an ad hoc Arbitral

Tribunal constituted under Article 16 of the 1993 Convention, the ICJ, or the dispute

settlement procedures of the UNCLOS30.

Under the LOS convention, states have a general duty to peacefully settle disputes under

the Convention by any means they can agree up on. However, if settlement is not

reached, and the parties have explicitly excluded no other procedure, either party is

entitled to trigger the compulsory dispute settlement procedure.

29 Convention for the Conservation of the Southern Bluefin Tuna, Aust.-N.Z-Japan,10 May 1993,1819U.N.T.S. 359, art.1630 States are always free to choose whatever peaceful method they want to settle disputes, includingdiplomatic means. The principle of the free choice of means is enshrined in Article 33 of the UN Charter.

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As Australia and New Zealand instigated the LOS procedure, Japan made a preliminary

objection on the ground that the parties have already agreed to submit the dispute to the

settlement procedure under the 1993 convention. The question arose as to which

procedure has jurisdiction over the dispute; the one under UNCLOS providing for

unilateral activation (i.e. the compulsory paradigm), or the procedure in the 1993

Convention providing for agreed up on activation (i.e. the consensual paradigm)?

Two separate adjudicative bodies looked in to the question and reached antithetical

conclusions. First, the International Tribunal for the Law of the Sea (ITLOS) considered

the matter while deciding whether it could order provisional measures pending

constitution of an annex 7 ad hoc Arbitral Tribunal 31.It found that the fact that the 1993

Convention applied to the parties did not preclude them from recourse to the dispute

settlement procedures of the LOS convention. According to the tribunal, the LOS

Convention would be overridden only in the event that the parties could agree to submit

the dispute to arbitration under the 1993 convention.

The ad hoc Arbitral tribunal constituted thereafter found differently. It concluded that it

lacked jurisdiction and dismissed the case holding that the absence of an express

exclusion of any procedure is not decisive for the purpose of the UNCLOS. According to

the situation be dealt with had the conflict been between the compulsory conciliation

system of MEAs and the trade regime dispute settlement system? Again, no state practice

conveys a hint on this specific issue.

In the remaining part of the paper, I will try to answer these questions after going through

the approaches adopted by the courts and tribunals in dealing with the problems

illustrated above.

3. Approaches to settling Disputes Involving Multiple Fora

When confronted with the problems arising out of the multiplication of dispute

resolution procedures with compulsory jurisdiction, courts and tribunals have not

adopted a consistent and well developed approach. There are no agreements offering

solutions to the problems discussed. Falling back on customary international law, the

general principles, and the case law of international courts and tribunals, though points

to some clues, doesn’t help much either. How ever, a careful survey of the most recent

scholarly literature and international practice points to some possible antidotes. It is not

the purpose of the paper to examine all these suggestions towards resolving the

paradox. However, in search of a solution to the problem of convergence of jurisdiction

between the compulsory conciliation and other compulsory dispute resolution systems,

I will try to elaborate on the dominating conjectures as related to the decision of the

tribunals that have handled the cases.

In entertaining environmental disputes between states litigating simultaneously or

serially on essentially the same dispute in multiple fora, the bulk of scholarly writings

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and texts are geared towards two approaches: the self-contained regime and the

harmonization approach. We will be dealing with each one of these.

3.2. The Self-Contained Regime Approach

The self-contained regime approach was one of the approaches adopted by some courts

and tribunals confronted with the problems arising out of the multiplication of

international dispute settlement fora.A “self- contained regime” is a subsystem of

international law intended to exclude the application of other legal consequences more or

less, totally37.The study group on the fragmentation of international law established by

the ILC in 2002 has elaborated the concept of “self-contained regimes” as referring to a

“special set of secondary rules that determine the consequences of a breach of certain

primary rules …as well as any interrelated cluster …of rules on a limited problem

together with the rules for the creation, interpretation, application, modification, or

termination of those rules38.”

In the MOX plant case cited above, it is claimed that the OSPAR award represents an

important precedent in delineating the contours of self- contained treaty regimes by

allowing limited interaction between the OSPAR Convention and other environmental

regimes39.The OSPAR arbitration ruled on the separability of the “OSPAR dispute” from

other disputes on the ground that:

37 J. Combacau and D. Alland, “Primary and Secondary Rules in the Law of State Responsibility:Categorizing International Obligations”, 1985,47 Netherlands Year Book of International Law, 11738 International law commission, Fragmentation of International law: Difficulties Arising from theDiversification and expansion of International Law,A/CN.4?L.682, Fifty-eighth session, Geneva, 13 April2006,A/CN.4/L.682, 8339 Supra, note 30, 816

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“Each of the OSPAR Convention and Directive 90/313 is an independent legal source

that establishes a distinct legal regime and provides for different legal remedies40.”

On this ground, the tribunal rejected the relevance of the dispute settlement procedures in

the other regimes and other substantive international law norms on the right of access to

environmental information. An issue of great interest for our purpose is the panel’s

majority ruling that the OSPAR Convention is an isolated regime from parallel legal

regimes and that it has powers of review over the decision of the U.K.’s restriction on the

disclosure of information relating to the operation of the MOX plant. This represents the

clear recognition of the self-contained approach by the panel.

The ITLOS recognized the same approach in the Southern Bluefin Tuna case in

maintaining that:

“…But the Tribunal recognizes as well that it is a common place of international

law and state practice for more than one treaty to bear up on a particular dispute.

There is no reason why a given act of a State may not violate its obligations under

more than one treaty. There is frequently a parallelism of treaties, both in their

substantive content and in their provisions for settlement of disputes arising there

under….the conclusion of an implementing convention does not necessarily

vacate the obligations imposed by the framework of convention up on the parties

judicial decisions. It also leads to unnecessary litigation and opens the door for

manipulating the international legal process. In this regard, the remark by the UNCLOS

panel in the MOX plant case cited above is of particular importance.

Therefore, when an environmental dispute settlement forum is seized by the problems of

multiple fora in entertaining disputes touching up on two complimentary treaties, both of

which have incorporated compulsory dispute settlement system, it should make a

harmonious construction of the law in a way to establish a single dispute that can be

entertained on a single channel.

48 Ibid. 823

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It would be worth examining the situation where a competition may arise between the

dispute settlement system in the MEAs and the ICJ, due to an optional declaration of

acceptance of the ICJ’s jurisdiction. In this regard, the choice of the proper forum

depends on assessing the significance of adopting each of the approaches in entertaining

environmental disputes.

Of course, there are probabilities that the countries, even if have made the optional

declarations, might not be subjected to the compulsory jurisdiction of the ICJ. This

happens because, usually, in making optional declarations, countries have conditions

excluding compulsory jurisdiction for disputes where there is provision to use alternative

methods of settlement. Even if the countries have not made such a declaration and hence,

are subject to its jurisdiction, the applicant country may not want to refer the matter to the

ICJ. This may be a possibility in light of the unsatisfactory environmental case law of the

ICJ, which commended against its selection in most of the times49.

If however, under the circumstances described above, the claim happens to be initiated in

the MEA forum and the ICJ, which will be the legitimate forum to dispose the dispute?

The PCIJ has faced a related dilemma in the Electricity Company of Sofia and Bulgaria

case, where it was confronted with two different sources of jurisdiction: a Belgian-

Bulgarian treaty of conciliation, arbitration and judicial settlement, and the optional

49 Cesare Romano, “The Southern Bluefin Tuna Dispute: Hints of a World to Come… Like It or Not”,Center on International Cooperation (2001),320 Online: Project on International Courts and Tribunals<http://www.pict-pcti.org/publications/articles_paprs.html>

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declarations by the two countries 50.The court has decided in favor of assuming

jurisdiction on the ground that “the parties, through the multiplicity of agreements they

concluded, do not have the intention of taking the court’s jurisdiction away and weaken

the obligations which they had previously entered in to with a similar purpose….to allow

them to cancel each other out with the ultimate result that no jurisdiction would

remain”51.

Although any speculation on how the ICJ would decide had the tension been between the

compulsory conciliation incorporated under the MEA and the ICJ is moot, the acontrario

inference from the above reasoning court seems to suggest suspension of the proceeding

up until the case is decided by the MEA procedure, as has been done by the ITLOS in the

MOX plant case. This is so because: first, in this particular situation discussed, the

purpose of resorting to the MEA procedure will neither “weaken their obligation” nor

“cancel each other [the procedures] with the ultimate result that no jurisdiction would

remain”. In light of this, it is unlikely that the ICJ would claim jurisdiction in such cases.

Second, the MEA procedure is better suited to handle environmental disputes and as

explained above, represents a viable alternative to the more formal means of dispute

settlement. Though the ICJ established an Environmental Chamber valuing special forum

for environmental disputes, this doesn’t seem to serve any practical purposes for different

reasons and in fact, the chamber has not yet entertained any environmental disputes52.

50 Electricity Company of Sofia and Bulgaria, 1939 P.C.I.J. (Ser. A/B) No. 77(4 Apr.), 451 Ibid. 7652 For the arguments against the effectiveness of the Environmenta1 Chapter of the ICJ, read P.R. Romano,cited above at note 4, 125

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This suggests that the MEA procedure would establish jurisdiction, though it may refer

the case back to the ICJ to decide on jurisdiction (for the sake of mutual respect and

procedural comity).

The other issue concerns the problem of forum selection in interdisciplinary legal

regimes. In this context, the issue at hand is the dichotomy between the dispute settlement

systems incorporated in the trade regime, particularly, the WTO system, and the

compulsory conciliation system in MEAs. In this regard, there is no jurisprudential

evidence touching up on the issue that can provide a clue. The Swordfish case mentioned

above could have provided some hint, but as indicated above, it has ended up with

negotiations between the two disputant states.

In light of the justifications behind each of the approaches designed to deal with similar

situations, it is my view that in this regard, the “self-contained regime” approach is the

option that will yield a better solution. First, all the justifications mentioned in favor of

harmonizing the disputes in the above circumstances are absent in this specific instance.

WTO members have declared the WTO fora as exclusively mandated to adjudicate trade

disputes. Hence, the object and purpose of MEA’s mechanism differs from those of the

WTO and thus in the above circumstances, it is difficult to say that the two fora are

dealing with the same subject matter.

This leads to the conclusion that while a MEA party is the subject of a dispute-settlement

process for its actions or in actions, the same governmental actions could be examined

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before a WTO adjudicating body, pursuant to an allegation of a WTO violation. Under

the circumstances, the two institutions could reach different conclusions on factual

aspects or on the interpretation of the MEA’s provisions. In this case, the question on

how MEA members subjected to compulsory conciliation and also to the WTO should

deal with the various aspects of a dispute when findings from these fora can lead to

inconsistent decisions still remains unanswered.

In this regard, the 1996 report of the WTO Committee on Trade and Environment (CTE)

stipulated in its conclusions and recommendations that:

“If a dispute arises between WTO members, parties to a MEA, over the

use of trade measures they are applying between themselves pursuant to

the MEA, they should consider trying to resolve it through the dispute-

settlement mechanisms available under the MEA53.”

The message of the report was that first the parties settle the dispute through the MEA

and only as a last resort would use of the WTO be made. This, however, has seriously

been opposed by the members on the ground that it would undermine their right under

Article 23 of the DSU54.More over; the report has, at best, solely the legal value of

recommendation of the WTO CTE, which would find relevance in a WTO panel, but

does not constitute an amendment to Article 23.Therefore, in the absence of any

agreement between the parties to submit the dispute to a particular forum and short of any

53 Report of the committee on Trade and Environment (1996) (WT/CTE/1), World Trade Organization<http://docsonline.wto.org/GEN_searchResult.asp> Para. 17854 Magda Shahin, “Trade and Environment in the WTO: Achievements and Future prospects”,(1997),Online: Third World Market , <www .twside.org.sg/title/ach-cn.htm>

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international rule as to how these different mechanisms interact, it is likely that a single

dispute may be subjected to the parallel compulsory process of both the MEA and WTO

systems and in fact, different findings.

This, however, is one asset of the self-contained regime that encourages specialization

and ensures that courts do not overreach and encroach on less familiar legal regimes

governed by other dispute settlement bodies55. In this context, the significance of this

approach is that the MEA dispute settlement system would be able to retain proper

ownership of the applicable disputes. Under the circumstances, it is difficult to say that

the two proceedings relate to the same subject matter that would yield the same results.

This point is better elaborated in the decision of the ITLOS in the MOX plant case which

held that:

“The dispute settlement procedures under the OSPAR Convention, the EC

Treaty and the Euratom Treaty deal with disputes concerning the

interpretation or application of those agreements, and not with disputes

arising under [UNCLOS]…Even if the OSPAR Convention, the EC

Treaty and the Euratom Treaty contain rights or obligations similar to or

identical with the rights or obligations set out in [UNCLOS], the rights

and obligations under those agreements have a separate existence from

those under [UNCLOS]…The application of international law rules on

interpretation of treaties to identical or similar provisions of different

treaties may not yield the same results, having regard to differences in the55 Supra note 36,823